Issue of the Month

February 2001, Weingarten and the Epilepsy Foundation of Northeast Ohio Will Affect Your Disciplinary Procedures

IWhen the American Bar Association's Labor and Employment Law Section met recently, one topic of discussion was the NLRB v. J. Weingarten Inc. (1975), and Epilepsy Foundation of Northeast Ohio, [331 NLRB No. 92] (2000). These two separate cases establish an employee's right to have a representative present when an employer conducts an in-person investigation that may lead to disciplinary action.

In 1975, the United States Supreme Court ruled in the Weingarten case that a union employee was entitled to have a union steward present during an investigatory interview. In 2000, the NLRB ruled this standard applies to non-union employees as well. That is, non-union employees have the right to invite a co-worker into an investigatory interview that may result in disciplinary action. You can find the text of the NLRB decision on their Website. The address is http://www.nlrb.gov or the PDF document can be found at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=nlrb&docid=f:331-92.pdf

Opponents of the ruling cite the following reasons why non-union employees should not be entitled to invite a co-worker into a personal disciplinary investigation:

1. Co-workers are not trained in disciplinary procedures like union representatives.
   
2. Confidentiality in some cases will be compromised (especially such cases that address sexual harassment charges).
   
3. The investigation can be restricted by the presence of parties not involved in the case.
   
4. No-union co-workers have no obligation to the group as a whole as union representatives have to their bargaining unit.
   
5. The NLRB misinterpreted the Supreme Court's decision intended for union organizations only.
   
   

This subject will likely be under debate for months to come. As it stands, employers' rights are as follows:

1. Employers are not obligated to tell an employee of the right to have a co-worker present before an interview that will investigate conduct and may lead to disciplinary action.
   
2. If an employee requests to have a co-worker present at an interview, it is recommended this be allowed.
   
3. Employers can wave the investigation and move to discipline an employee as necessary.
   

The Labor and Employment Law Section of the American Bar Association is not the only organization debating this issue. Undoubtedly, this will be a hotly contested issue throughout this year. We will watch it closely for developments and will report when information is available.

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